The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
ORDER OF COURT RULING ON DEFENDANT'S OBJECTIONS (DOC. NO. 821) TO FINAL JURY INSTRUCTIONS (DOC. NO. 800), GOVERNMENT'S REQUESTED POINT FOR CHARGE (DOC. NO. 829) AND REVISED FINAL JURY INSTRUCTIONS
On March 6, 2008, this Court filed its Final Jury Instructions (doc. no. 800), and entered a schedule for filing objections and any requested additional points for charge. The Final Jury Instructions were the culmination of a lengthy process, over at least an 18 month period, of "meet and confers," proposed jury instructions, counter instructions, objections, and numerous opinions and rulings of the Court interpreting and clarifying the statutes and legal principles involved in this case. The government, in its Response (doc. no. 824) to Defendant's Objections to Final Jury Charge with attached "Exhibit A: Defendant's Proposed Jury Charges on Defense Theory of the Case" (doc. no. 821), accurately and fairly details the procedural history of the interactive process of drafting preliminary and final jury instructions, and the Court's resolution of all disputes over jury instructions to date. Government's Response to Defendant's Notice of Objections to the Court's Proposed Jury Instructions (doc. no. 824) at 2-4. The Court adopts that recitation of the procedural history.
After careful consideration of defendant's objections, including the proposed points for charge on the "Defense Theory of the Case," and the government's response thereto, the Court denies defendant's objections to the Court's Final Jury Instructions, with one significant and a few minor exceptions.
The Court sustains defendant's Objection D to the Instruction " Mail and Wire Fraud as to Counts 1-36 - Unanimity Required" with regard to the need for an "augmented unanimity" instruction as to the state and county laws from which defendant's fiduciary and ethical duties to the citizens of Allegheny County derive.
The general rules regarding "augmented unanimity" or "specific unanimity" instructions in criminal cases are as follows:
While it is true that in most cases a general unanimity instruction is sufficient to support a conviction, see United States v. Beros, 833 F.2d 455, 460 (3d Cir. 1987), a specific unanimity instruction is required "where the complexity of the case, or other factors, creates the potential that the jury will be confused." Id.; cf. United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir.), rev'd on other grounds, United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) ("[I]n any case where a count will be submitted to the jury on alternative theories, prudence counsels the trial court to give an augmented unanimity instruction if the defendant requests such a charge. Unanimity is an indispensable element of a federal jury trial.") (internal citation omitted). The purpose of a specific unanimity instruction is to ensure that the jurors are "in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged." Beros, 833 F.2d at 460 (quoting United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir. 1977)).
The government's "honest services" mail and wire fraud counts assert an overall scheme to defraud the citizens of Allegheny County of honest services, but this overall scheme has many numerous and varied "parts." Revised Indictment (doc. no. 656-2), ¶¶ 27(a)-(l), 28-29, 30(a)-(g), 31-33. The complexity of the honest services scheme and the myriad state and county law "predicates" upon which Counts 1-27 rely, see pages 29-37 of the Final Jury Instructions (doc. no. 800), triggers the need for an augmented unanimity instruction because of the danger of jury confusion and defendant's Sixth Amendment right to a unanimous jury on all elements of a charged offense.
"Prudence counsels" an augmented unanimity instruction as to the various parts of the overall scheme given the complexity of the case and the multi-faceted nature of the honest services fraud counts, which creates a real potential that the jury will be confused without such an instruction. Especially is this so given the varied state and county predicates which are the component parts of the overall scheme as the sources of defendant's fiduciary and ethical duties to the citizens of Allegheny County, alleged violations of which deprive the citizens of honest services. As such, these state and county predicates are the "anchor" of the honest services fraud counts. See United States v. Antico, 275 F.3d 245 (3d Cir. 2001); United States v. Panarella, 277 F.3d 678 (3d Cir. 2002); United States v. Murphy, 323 F.3d 102 (3d Cir. 2003); United States v. Kemp, 500 F.3d 257 (3d Cir. 2007), cert. denied ___ S.Ct. ___, 2008 WL 219248 (2008).
Accordingly, the Court will modify its Final Jury Instructions to include an augmented unanimity instruction in the context of the honest services fraud counts.
Although defendant does not request it, the Court deems it appropriate to also augment the unanimity instruction in the context of the specific acts that would satisfy the second element of the theft of funds from agency receiving federal funds under 18 U.S.C. § 666 charged at Counts 37 through 41. Those qualifying acts are that defendant "embezzled, stole, obtained by fraud, converted to the use of another without authority, or intentionally misapplied" property valued at over $5,000. See Beros, 833 F.2d at 462 (in context of conviction for embezzling, stealing, abstracting, or converting union funds in violation of 18 U.S.C. § 664, Court of Appeals requires unanimity regarding the specific act or acts which constitutes that offense, stating:
"When the government chooses to prosecute under an indictment advancing multiple theories, it must prove beyond a reasonable doubt at least one of the theories ...